Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...
By Thomas O'Toole
Feb. 10 — Internet governance experts working on a plan to replace the federal government's stewardship role over ICANN's performance of basic Internet addressing functions suffered a series of setbacks in the days immediately preceding, and during, the Internet Corporation for Assigned Names and Numbers' 52nd public meeting in Singapore.
The first bit of bad news came on Feb. 3 when the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG), the group in charge of drafting the IANA transition plan, indicated that, in a “best case scenario,” it would not be able to reach consensus on a transition plan until June 2015. The date is several months after the deadline called for in the current timeline, and the prospect of a tardy submission by the CWG cast serious doubt over the ICANN community's ability to deliver an IANA transition plan before the Sept. 30 expiration of the current IANA functions contract between the Department of Commerce and ICANN.
The second setback came Feb. 8 when the Cross Community Working Group on Enhancing ICANN Accountability (CCWG), the group working on ICANN accountability mechanisms that will be needed once the National Telecommunications and Information Administration steps away from the oversight role it has performed since ICANN's creation in 1999, received word from ICANN's outside legal counsel that several of the accountability mechanisms under discussion would be ineffective under California law. These were chiefly mechanisms that allowed the ICANN community to exercise control over decisions by the ICANN board of directors.
Finally, a Dec. 1, 2014, draft of the CWG's IANA stewardship transition proposal does not appear to likely to gain consensus support within the ICANN community anytime soon.
Both the IANA sterwardship transition plan and the accountability plan must be coordinated and completed at the same time.
Assistant Secretary of Commerce for Communications and Information Lawrence E. Strickling has stated on several occasions that the Sept. 30 date is not a drop-dead date, and that the primary objective of the ICANN community should be to come up with broadly supported plan that meets the criteria he set out in the March 2014 announcement of the IANA functions stewardship transition.
Strickling repeated in Singapore that Sept. 2015 is not a hard deadline, though the reminder did not ameliorate timeliness concerns within the ICANN community.
In remarks that were frequently repeated during the Singapore meeting, Ira Magaziner, the Clinton administration official who oversaw the creation of ICANN in 1999, told ICANN meeting attendees Feb. 6 that “speed and quality can go hand in hand.”
The Internet Assigned Numbers Authority functions are (1) protocol parameters developed by the Internet Engineering Task Force, (2) Internet numbers registry management, handled by five Regional Internet Registries around the world, and (3) Domain Name System root zone management tasks, handled by ICANN. The IETF and the Regional Internet Registries (RIR) have already submitted their IANA stewardship transition plans.
During a Feb. 8 meeting, ICANN's IANA Stewardship Transition Coordination Group (ICG), the body that will assemble the three transition plans (plus an accountability framework being developed elsewhere within the ICANN community), discussed ways it might cope with a June 2015 submission from the CWG. The group discussed shortening deadlines and comment periods, as well as completing its review of the IETF and RIR submissions already in hand.
Strickling appeared to throw cold water on the latter strategy, stating that he would only accept a comprehensive plan.
“Let me quash right now the idea that we'll accept a partial proposal. Don't even waste my time,” Strickling said. “The community needs to come up with a complete, comprehensive proposal on both the IANA functions and accountability and present it to the United States.”
Strickling added that the government would only accept a broadly supported plan, one submitted to him without dissenting statements.
Barring a change in its planned approach, a best case scenario for the IGC to complete its work is December 2015.
Strickling remarked that, while congressional approval is not strictly necessary for the IANA stewardship transition proposal to be approved, Congress is “quite interested” in the issue and will almost certainly hold hearings on whatever proposal is produced by the ICANN community.
On Feb. 5, Rep. John Shimkus (R-Ill) re-introduced the Domain Openness Through Continued Oversight Matters (DOTCOM) Act. The measure, H.R. 805, would prevent the National Telecommunications and Information Administration from terminating its stewardship role over ICANN's performance IANA functions until the Government Accountability Office has completed a study of the national security and cybersecurity ramifications of ending the NTIA's involvement in this aspect of DNS management.
Also on Feb. 5, Sen. Orrin Hatch (R-Utah) introduced
S. Res. 71 , a measure that described a list of conditions that should be embodied in the ICANN community's IANA stewardship transition plan. Among them:
• provide accountability based on separation of the functions of policy-making, policy implementation;
• provide independent adjudication or arbitration for dispute resolution;
• limit ICANN authority to Internet unique identifiers;
• ensure that key policy decisions have broad support of ICANN stakeholders;
• reinforce and expand transparency and accountability measures; and
• make necessary bylaws changes to carry out transition plan.
The Senate passed the resolution on Feb. 5.
The CWG draft proposed a so-called “external” solution to IANA stewardship: the creation of a new Contract Co., separate from ICANN, that would be in charge of contracting with the IANA functions operator. The proposal also calls for the creation of several supporting entities: a multistakeholder review team and a customer standing committee and an independent review panel — all intended to provide checks against the activities of the IANA functions operator.
Opposed to the external solution is an “internal” solution, favored in some ICANN quarters, that would move IANA functions oversight within ICANN, preserve the multistakeholder review panel, but also providing for the creation of a protective “golden bylaw” to ensure ICANN acted according to the wishes of the ICANN community.
The CWG draft does not have the support if ICANN's At-Large Advisory Committee, and it drew numerous critical comments following its publication.
So far Strickling has not directly addressed the CWG draft. However, many in the ICANN community have gleaned implied disagreement form “questions” he raised during Jan. 27 remarks at the State of the Net conference in Washington, D.C.
At the State of the Net event, Strickling asked whether the creation of new entities might create security and stability issues, whether all options have been considered, whether the CWG drafters might be “re-creating existing concerns in a new form or creating new concerns,” and whether ICANN accountability concerns are not being addressed but merely shifted to a new, and unknown, entity.
In Singapore, Strickling asked whether the CWG drafters had given adequate consideration to the time it might take to implement a plan that would take IANA functions administration outside ICANN.
The CWG will meet Feb. 11 and Feb. 12 in Singapore.
The CCWG, the group in charge of drafting and gaining community support for an accountability, is considering several accountability measures that must be in place prior to the IANA functions stewardship transition. These include:
• community approval of changes to ICANN bylaws and articles of incorporation;
• community rejection of board or management action in conflict with bylaws or articles of incorporation;
• community rejection of budget and strategic plan;
• amendment of ICANN bylaws to incorporate Affirmation of Commitments;
• community ability to force ICANN board to take certain actions;
• clarify ICANN's limited scope of activities and prevent ICANN from acting outside this scope; and
• community ability to dismiss ICANN board members.
The CCWG is also operating with a set of over two dozen “stress tests” designed to test the effectiveness of accountability mechanisms as against possible scenarios.
Several ICANN board members indicated general support for the accountability mechanisms described by the CCWG.
The Feb. 8 letter from ICANN's law firm, Jones Day, which opined that several CWG accountability mechanisms would unlawfully usurp board authority under California state law, galvanized the CCWG to seek its own legal counsel. Both the CWG and the CCWG will shortly be hiring their own legal counsel to assist them in the IANA transition and accountability processes. ICANN staff indicated that ICANN would pay the cost of legal counsel, provided the costs were reasonable.
To contact the reporter on this story: Thomas O'Toole in Singapore at firstname.lastname@example.org
To contact the editor responsible for this story: Joseph Wright at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)